The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing two decisions made by the Workers Compensation Board ("WCB")with respect to her 1998 compensation claim. A hearing was held on November 19, 2015 to consider the worker'sappeal.

Issue

Whether or not a post-accident deemed earning capacity should be implemented effective October 24, 2014; and

Whether or not the worker's permanent partial impairment rating for airway sensitivity and chronic rhinitis has been properly established.

Decision

That a post-accident deemed earning capacity should be implemented effective October 24, 2014; and

That the worker's permanent partial impairment rating for airway sensitivity and chronic rhinitis has been properly established.

Decision: Unanimous

Background

The worker filed a claim with the WCB in 1998 for respiratory difficulties that she related to her work environment. Following receipt of medical and other information, the claim for compensation was accepted for occupational asthma, caused by exposure to diesel fumes in the workplace. Subsequent medical information showed that the worker's compensable occupational asthma condition resulted in bronchial hyperactivity which made the worker susceptible to react to numerous atmospheric pollutants. In addition to occupational asthma, the worker has been diagnosed with rhinitis, secondary to chronic asthma and subscapular cataracts due to steroid medication use.

File records show that the worker has been provided with wage loss and medical aid benefits, as well as vocational rehabilitation assistance.

Between 1999 and 2014, the worker's claim was the subject of review by the WCB's healthcare branch to determine whether or not the worker was entitled to a permanent partial impairment ("PPI") award with respect to her compensable conditions. A brief summary of these file reviews and the decisions made by initial adjudication is as follows:

• On March 12, 1999, the worker's claim file was reviewed by a WCB internal medicine consultant and he opined that based on pulmonary function studies, chest x-rays and other laboratory investigations, the worker's impairment rating was calculated as 5.7%. However, based on an incomplete exercise test due to development of high blood pressure, the corrected value was 1.9%. To this value, 7.5% was added for the severe degree of bronchial hyper-reactivity. The total impairment was therefore 9.4%.

• By letter dated April 9, 1999, the worker was advised that her impairment rating had been calculated at 9.4%, however, the award would not be implemented as it was expected that her condition would improve after being away from the work environment. The worker was advised that she would be examined again in one year's time with respect to a possible impairment award.

• On July 20, 2000, the worker attended the WCB offices for a call-in assessment by the WCB's internal medicine consultant regarding a PPI award. In his report, the consultant stated "I calculated the impairment rating as 0% for air flow limitation. The impairment rating is 7.5% for the marked bronchial hypersensitivity. The total, therefore, is 7.5%."

• In a memo to file dated December 22, 2005, the WCB's internal medicine consultant suggested that the worker undergo full pulmonary function studies to determine whether she qualified for a PPI award. File records show that the PPI assessment was postponed due to the worker starting a new position.

• On December 20, 2009, a WCB ENT consultant reviewed the worker's file and provided the opinion that the worker was not entitled to an impairment award for rhinitis. Based on this opinion, the worker was advised on February 2, 2010, that she was not entitled to a PPI award for the rhinitis. The case manager stated:

"The Medical Advisor reviewed the file on December 20, 2009. He provided the opinion that you were diagnosed with vasomotor rhinitis, deviated nasal septum, hypertrophy of the inferior turbinates and recurrent sinusitis, which required repeat surgery to straighten the nasal septum, reduce the size of the turbinates, and clear the sinus infections.

He opined that the last report obtained from Dr. [name] dated Nov. 9, 2009 indicates that the nasal examination is perfectly normal and there is no evidence of sinus infection. He added that due to the vasomotor rhinitis, the worker will be prone to recurrent sinus infection and recurrent nasal obstruction, which could be managed with medications, and opined that as far as PPI for the nose, it is 0%.

Given the above, there is no entitlement to a permanent partial impairment award for the rhinitis."

• On July 10, 2014, a WCB medical advisor reviewed the file and stated:

"Spirometry has been undertaken on numerous occasions and has been within normal limits except at the time of an acute flare of her symptoms which rapidly settled.

A PPI was calculated in the past for airway hypersensitivity and visual loss.

At the present time the asthma, as expected, is stable except for exposure to irritants.

With normal spirometry and minimal clinical findings, except for asthma flare-ups, there is no change in her rateable PPI."

• By letter dated July 11, 2014, the worker was advised that based on the file information, the previous rating of 0% adequately reflected the present degree of impairment due to her injury, and that as such, no increase could be made to her impairment rating.

In January 2014, the worker's claim file was reviewed by a WCB case manager and a sector service manager with respect to the worker's restrictions and return to the workforce. In a memo to file dated January 10, 2014, the WCB case manager stated:

"Due to [worker's] hypersensitivity to environmental triggers that are outside of her control and the severity of attacks when she encounters these triggers, a return to a normal working environment is not practical.

The worker was and is capable of working from home, however this type of employment does not fall within the current employability model used by WCB.

My recommendation is that worker should be considered medically unable to work in a normal workplace due to the severity of her asthmatic condition. It is noted the worker can work from home and although these jobs do not fall within WCB employability model, they are out there. The worker should be encouraged to seek out these types of positions. If the worker is successful in securing paid work from home, ongoing wage loss should be adjusted based on actual earnings."

In that same memo to file, the WCB sector manager stated:

"After review of this claim, I am in agreement with the Case Manager. Because of the severity of her attacks and the very restrictive nature of her restrictions/condition, the worker may well be totally disabled as a result of the injury….

However, I also agree that the worker be provided with a period of job search assistance to determine if she can secure an employment situation within the skill set she currently has, within her home; where she can control the environment. This worker has had a similar type of employment in the past and has been successful. However, I also recognize the very restrictive nature of these employment opportunities. (Totally home based only - no meetings, etc. held at the employers offices)

Following the trial of job search assistance, a further determination will be made with regards to referral to [long term wage loss]."

A WCB medical advisor reviewed the worker's file on January 27, 2014 and stated:

"Asthma is a condition which may have periodic flare-ups with exposure to respiratory irritants in the air breathed (triggers). Common triggers include: dust, fumes, cold air, and smoke. As such, she should avoid occupational exposure to dust, fumes, smoke and perfumes. This does not mean that she cannot go outside in the cold air or that she can never be exposed to these triggers, but that she should avoid them in the workplace. These restrictions should be permanent."

In March 2014, the worker was seen at the WCB offices for a call-in examination. In the report dated March 20, 2014, the WCB medical advisor stated:

"[The worker's] reported perception is that her asthma is worsening, and currently life threatening (May 7 2013 memo). A review of the information on file reveals that while [the worker] has attended the hospital on several occasions due to respiratory symptoms, there is record of only one overnight admission. She has never been admitted to an intensive care unit nor ever required intubation. Aside from the use of IM epinephrine during a shortness of breath episode in July 2013, it does not appear that she has otherwise ever required emergency treatment with agents beyond nebulized bronchodilators and steroids. There is no objective evidence of deterioration in lung function or specific increase in asthma severity."

The medical advisor further stated:

"Asthma is a not uncommon condition in the general population. Asthmatics are typically advised that they should avoid recognized triggers in their asthma symptoms. Asthma is not typically associated with total disability or unemployability. Consistent with this, [the worker's] day to day activities are not consistent with those of a totally disabled person. Based on the assessment today, [the worker] would not be considered to be totally disabled nor unemployable on account of her asthma. She has demonstrated an ability to successfully avoid triggers when carrying out her day to day activities and when travelling abroad. It would be expected that she similarly would be able to take reasonable steps to avoid triggers in an office-type workplace. The restrictions currently on file in regard to avoiding likely inhalant triggers continue to be appropriate and should be manageable in the workplace."

On May 16, 2014, the WCB medical advisor who examined the worker in March 2014 wrote the attending specialist and stated:

"While her asthma diagnosis is not in dispute, its impact on her ability to be employed has been raised.

Based on review of the information in [the worker's] WCB file and having discussed her condition both with [the worker] and with yourself, it seems that while her symptoms may be triggered by a variety of irritants, with appropriate avoidance of such triggers she should be able to manage safely in an appropriate workplace. [The worker] has demonstrated an ability to successfully avoid such triggers in her day to day activities in Winnipeg and in other locales.

The current suggested workplace restrictions include 'avoid occupational exposure to dust, fumes, smoke and perfumes.' As we discussed, these restrictions continue to be appropriate and should not represent an insurmountable barrier to [the worker] finding meaningful and appropriate employment."

On May 23, 2014, the worker was advised that the WCB did not consider her to be totally disabled, and as such, that her file was being referred for vocational rehabilitation services.

On June 13, 2014, a WCB Employment Specialist ("ES") placed a memo on file that the worker intended to appeal her restrictions (avoid occupational exposure to dust, fumes, smoke and perfumes) as she felt that these restrictions were not fully reflective of her current condition.

On July 9, 2014, an Earning Capacity Assessment regarding National Occupational Classification ("NOC") 1411, Office Clerk, was placed on file.

On July 10, 2014, the WCB ES placed a memo on file that the worker was capable of securing work under NOC 1411 and that a deemed earning capacity of $537 per week was reasonable.

A vocational rehabilitation plan ("VRP") was developed for NOC 1411, General Office Clerk. The VRP provided for a 14-week job search period starting July 21, 2014 and ending October 24, 2014. At the completion of the VRP, it was anticipated that the worker would be capable of earning $537 per week. In the event that employment was not secured after the 14 weeks of job search assistance, the worker's benefits would be reduced in accordance with WCB policy. A copy of the VRP was sent to the worker on July 10, 2014.

In a letter dated July 31, 2014, the WCB responded to e-mail correspondence sent by the worker in which she stated: "I want to make sure you all know that I don't go outside on humid days or cold days (with wind-chill values) due to my compensable injury." The WCB case manager referred to the comments by the WCB medical advisor dated January 27, 2014 and stated that her permanent restrictions remained as follows: avoid occupational exposure to dust, fumes, smoke and perfumes.

Based on an appeal submission by an advocate dated August 9, 2014, Review Office was asked to reconsider a number of decisions that were made by initial adjudication. One of the issues was whether or not the worker was entitled to a PPI award. After reviewing the worker's file and submission, Review Office determined that the worker was entitled to receive the PPI award for the rating assigned in 1999 for airway sensitivity, but that there was no entitlement to an increase in the impairment rating at this time. In its decision, dated October 20, 2014, Review Office also indicated that it accepted the opinion expressed by the WCB ENT consultant that there was no ratable impairment for the worker's compensable condition of chronic rhinitis.

Another issue brought forward was whether or not the worker's wage loss benefits should be reduced effective October 25, 2014 by a deemed earning capacity in NOC 1411, General Office Clerk. Regarding this issue, Review Office determined that the worker was capable of employment such as the work she did at the time of her accident in an office environment, and that she was capable of employment within NOC 1411.

Review Office indicated that the worker had the skills and physical abilities to work in NOC 1411 and that she was neither totally disabled nor unemployable by the nature of her asthmatic condition. Review Office accepted the May 2014 opinion by the WCB medical advisor that "...[the worker's] symptoms may be triggered by a variety of irritants, with the appropriate avoidance of such triggers, she should be able to manage safely in an appropriate workplace..."

Based on Review Office's decision, the worker was advised on October 28, 2014, that she was entitled to a PPI rating of 9.43% which resulted in a one-time payment in the amount of $1,110.00.

On January 19, 2015, the worker's advocate appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. On July 23, 2015, the worker's advocate submitted additional medical and other information, which is on file. In November 2015, the worker's advocate submitted further medical and other information for consideration by the appeal panel. A hearing was held on November 19, 2015 to consider the worker's appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of Directors.

The worker has raised two issues on this appeal. The first issue relates to wage loss benefits and a deemed earning capacity.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable when a compensable injury results in a loss of earning capacity and are paid until such time as the loss of earning capacity ends.

Pursuant to subsection 27(20) of the Act, the WCB may provide for academic, vocational, or rehabilitative assistance to injured workers.

WCB Board Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker. The VR Policy states, in part:

1. The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests.

2. The WCB will help the worker as much as possible to be as employable as she/he was before the injury or illness. Once this is done and where necessary, the WCB will provide reasonable assistance to the worker so that she/he actually returns to work. However, services may not always continue until the worker actually returns to work.

The second issue relates to the worker's PPI award.

With respect to this issue, subsection 4(9) provides that the WCB may award compensation in respect of an impairment that does not result in a loss of earnings. Section 38(1) of the Act provides that the WCB shall determine the degree of a worker's permanent impairment expressed as a percentage of total impairment. Subsection 38(2) provides a formula to determine the monetary value of an impairment award. Subsection 38(6) provides that a worker who is determined to have an impairment under section 38 and who suffers a significant deterioration of his or her medical condition, may apply to the WCB to reconsider the worker's degree of impairment.

The Board of Directors has established WCB Board Policy 44.90.10, the Permanent Impairment Rating Schedule (the "PPI Policy"). In accordance with the Policy, impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The method used in calculating the rating is set out in the Policy.

Worker's Position

The worker was represented at the hearing by an advocate, who made a submission on the worker's behalf. The worker responded to questions from her advocate and the panel. The worker's mother also made a submission and answered questions.

It was submitted that the worker is unable to work due to her compensable injury, and that her full wage loss benefits should be reinstated retroactive to October 25, 2014.

The worker's advocate submitted that the worker cannot safely work outside her home, given her illness. She has permanent restrictions. The medical professionals have cautioned that she should avoid triggers for asthma attacks such as dust, smoke, perfumes, cologne, chemical scents, diesel, humidity and cold air. It was submitted that her asthma has become worse, and that putting her into any workplace would be unsafe as it would expose her to triggers that could put her life in danger.

The worker and her advocate reviewed the history of her efforts to return to work, and the work assignments she had in the period of 17 years since her injury. It was submitted that her asthma was always a factor, and she either lost or was terminated from all of her jobs due to her sickness. The worker and her mother also described the difficulties and challenges which the worker faces on a daily basis, incidents which have occurred over the years and the effect that they have had on her health, how she manages to cope with her situation and triggers, and the current status of her health.

The worker's advocate submitted that the worker was very willing to work from home, and that this would be the best solution for her. She stated that the worker has attempted to obtain employment that she could do from home, but that it is rare to find a job that starts out that way, and that they had found nothing of that nature.

The worker's advocate referred to more recent correspondence from 3 different doctors: her attending respirologist, her family physician and a second respirologist. These letters dated June 16, June 29 and November 5, 2015, respectively, were not available at the time of the Review Office decision which is under appeal. Particular emphasis was placed on the letter of November 5 from the second respirologist. The advocate stated that in each of the reports, the doctor clearly indicated that the worker is not, in fact, able to work at all, given her health condition, health risks and triggers, and the fact that her illness is so life-threatening. In her opinion, what these medical professionals are saying is critical and must be acknowledged.

The worker's advocate submitted that there was a contradiction in saying that the worker is capable of working where she will be exposed to her triggers and restrictions while also saying that she should avoid her triggers. It was emphasized that the worker cannot control other people or her triggers.

It was submitted that the WCB failed to appreciate the seriousness of her illness; the decision made light of the worker's triggers in the workplace, as if they would not pose any problem or danger to her. Reference to such things as trips she had taken was misleading and failed to take into account the special arrangements she had to make and precautions she had to take when she did so. The worker's advocate submitted that categorizing the worker as being capable of work because she is able to travel occasionally to North Dakota is ludicrous.

With respect to the PPI award, the worker's advocate noted that the award was based on a rating which had been assigned in 1999, without any further investigation or assessment having been done in 2014. She questioned how they could know, without any further medical assessment, that there was no entitlement to an increase in the PPI rating. The worker's advocate stated that the bottom line in terms of the PPI was that because of the decline in the worker's health, they were just asking that she be reassessed by a WCB medical advisor.

Analysis

Issue 1: Whether or not a post-accident deemed earning capacity should be implemented effective October 24, 2014.

For the worker's appeal to be successful on this issue, the panel must find that a post-accident deemed earning capacity should not be implemented effective October 24, 2014. The panel is not able to make that finding.

The panel finds that the medical information on file does not support the worker's position that she was or is unable to work as a result of her compensable injury.

In arriving at this conclusion, the panel places considerable weight on the WCB medical advisor's findings at the March 20, 2014 call-in examination. Those findings were based on his review of the full WCB file, his examination of the worker and assessment of her condition. The panel notes that the medical advisor acknowledges the worker's triggers, but that does not mean she must stay at home or is unable to return to suitable employment. Rather, he finds that the worker should be able to take reasonable steps to avoid her triggers in an office-type workplace and her restrictions should be manageable in the workplace.

The panel notes that at the end of his examination notes, the WCB medical advisor also recorded that "[the worker's] case was discussed with her WCB case manager and with her respirologist. The respirologist agreed that the restrictions currently in place were appropriate and that the compensable condition would not be expected to render [the worker] unemployable."

The panel further notes that the WCB medical advisor spoke to the worker's respirologist again in mid May 2014, and that in his letter of May 16, 2014, the medical advisor confirmed their telephone conversation, including that the current suggested workplace restrictions, as set out in the letter, continued to be appropriate and should not represent an insurmountable barrier to the worker finding meaningful and appropriate employment.

The panel notes that the worker's advocate relied heavily in her submission on the 3 more recent doctor's letters, particularly the November 5, 2015 letter from the second respirologist. The panel has carefully reviewed those letters and determined that they are to be accorded limited weight. In this regard, the panel notes that the letters from the worker's family doctor and attending respirologist, dated more than 7 months after the deemed earning capacity was implemented, are very brief and not based on any new medical information. The attending respirologist enclosed a record of a pulmonary function test, but did not otherwise refer to or comment on that test in his letter. With respect to the letter from the second respirologist, the panel notes that it is based on an initial visit, and more importantly, that in providing an opinion, the doctor did not have full access to the WCB file.

Based on the evidence before us, the panel finds, on a balance of probabilities, that the worker is medically employable.

The panel accepts the VRP which was developed for the worker. The occupational goal was identified as being NOC 1411, General Office Clerk. In establishing that goal, the ES met with the worker, who identified this as an area of skills. The ES reviewed the worker's transferable skill set, education and training, work history and her proven employability in this NOC while her restrictions were in place. It was noted that NOC 1411 included a wide variety of different types of jobs and environments, and that there should be ample opportunity within NOC 1411 for the worker to exercise appropriate choices for her concerns with respect to her physical restrictions. The panel accepts that this was an appropriate classification.

A labour market analysis determined that there was a valid job market for that NOC code. An earning capacity assessment determined that based upon her education, training and previous employment experience as late as 2012, the worker would meet job qualifications and be capable of earning a minimum of $537 per week upon completion of the VRP. The panel is satisfied that the expected weekly earning capacity of $537 was reasonable and realistic.

The panel finds that a 14-week job search period, from July 21, to October 24, 2014, with the assistance of an employment specialist was also appropriate. The panel notes that the worker was expressly advised that if she had not secured employment by October 24, 2014, her benefits would be reduced in accordance with WCB policy.

The panel finds that the appropriate criteria were properly applied in developing the VRP which was reasonable and realistic. On a balance of probabilities, the panel finds that the worker's compensable injury would not have prevented her from successfully completing the VRP and securing employment within the identified time period. The panel finds that the deemed earning capacity as contemplated under the VRP should be implemented effective October 24, 2014.

The worker's appeal of this issue is denied.

Issue 2: Whether or not the worker's permanent partial impairment rating for airway sensitivity and chronic rhinitis has been properly established.

For the worker's appeal to be successful on this issue, the panel must find that the worker's permanent partial impairment rating for airway sensitivity and chronic rhinitis has not been properly established. The panel is not able to make that finding.

The worker's file was reviewed in March 1999 to determine a PPI rating, at which time her impairment was rated at 9.4%.

The worker's file was assessed by a WCB medical advisor for PPI eligibility in July 2014. The medical advisor noted that he reviewed the paper and electronic files, including the notes of the recent call-in examination conducted by another medical advisor in March 2014. Based on his review, including the tests which had been undertaken and clinical findings made over the years, he concluded that there was no change in the worker's PPI.

The panel accepts the 9.4% PPI rating as identified in 1999. The panel finds that the subsequent assessments and analyses of the worker's impairment indicate that there has been no significant deterioration in her condition as is required under subsection 38(6) of the Act for a reconsideration of her impairment.

With respect to the question of rhinitis, the panel notes the WCB ENT consultant reviewed the file in December 2009 and determined that the worker's condition could be treated with medications, such that there was no permanent disability for this particular condition and therefore no ratable impairment for rhinitis. The panel accepts the ENT consultant's conclusion, and finds that there is no PPI rating for rhinitis.

The panel notes that while the worker's advocate indicated in her submission that she was seeking a reassessment of the impairment rating because of the decline in the worker's health, even if it were established that there was such a decline, a PPI award is not intended to compensate a worker for a generalized deterioration in health. As previously stated, the panel is bound by WCB policies, and cannot consider other or new criteria which fall outside those that are set out in the PPI Policy. Other matters which the worker's advocate referred to or sought to advance as a basis for a further reassessment of the worker's PPI rating were not properly before the panel at this time and could not be considered.

The panel therefore finds that the worker's permanent partial impairment rating for airway sensitivity and chronic rhinitis has been properly established.

The worker's appeal of this issue is denied.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 18th day of January, 2016